MUHAMMAD ARSHAD vs THE STATE

ORDER

' ASIF SAEED KHAN KHOSA, J.---Through this petition Muhammad Arshad petitioner has sought post-arrest bail in case F.I.R. No,433 registered at Police Station Sadar, Gujranwala on 27-9-2005 in respect of offences under sections 148/ 302/149/109, P.P.C.

2. After hearing the learned counsel for the parties and going through the record it has been noticed by me that in the F.I.R. No specific or particular role had been A attributed to the petitioner and the allegations levelled against him therein had been couched in generalized and collective terms. The complainant had got his supplementary statement recorded on the very day of lodging the F.I.R. And according to that supplementary statement the petitioner had not caused any injury to the deceased. During the investigation two witnesses had come forward from the complainant's side and they had maintained that the petitioner had made an extrajudicial confession before them and according to that confession the petitioner was not present at the scene of the crime at the relevant time and he had only supplied some weapons to his co-accused for commission of the alleged murder. This shows that so far the prosecution has advanced three versions vis-a-vis the petitioner. The first version is contained in the F.I.R. Which shows that the petitioner had effectively fired at the deceased, the second version is contained in the supplementary statement of the complainant according to which the petitioner had not caused any injury to the deceased and the third version has emerged through the evidence produced by the complainant party regarding an extra-judicial confession allegedly made by the petitioner and according to the same the petitioner was not even present at the spot at the time of the alleged occurrence. Such divergence in different stands taken by the prosecution itself vis-a-vis the petitioner surely renders the case against the petitioner one of further probe at this stage. It is not disputed that nothing had been recovered from the petitioner's possession during the investigation of this case and as a result of the investigation the petitioner had been opined by the investigating agency to be innocent and his name was placed in Column No,2 of the challan. For all these reasons the case against the petitioner calls for further inquiry into his guilt within the 1 purview of subsection (2) of section 497, Cr.P.C.

3. The learned counsel for the complainant has vehemently argued that the petitioner had remained a fugitive from law and, thus, he is not entitled to be admitted to bail. He has also argued that the petitioner's trial has already commenced and, therefore, this is not a fit stage for admission of the petitioner to bail. The learned counsel for the complainant has relied upon the cases of Muhammad Sadik and others v. The State (1980 SCM R 203) and Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) in this respect. I have, however, remained unable to subscribe to these submissions of the learned counsel for the complainant. It has already been found by me above that the case against the petitioner calls for further inquiry into his guilt. It is settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to such accused person as of right and not by way of grace. Or concession. Bail is sometimes refused to an accused person on account of commencement of his trial and such refusal of bail proceeds mainly upon a consideration of propriety. It goes without saying that whenever a question of propriety is confronted with a question of right the latter must prevail. A reference in this regard may be made to the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). As regards the alleged absconsion of the petitioner the record of investigation of this case shows that no proceedings were ever taken against the petitioner under section 87 or 88, Cr.P.C.

And, thus, as per various judgments rendered by the Hon'ble Supreme Court of Pakistan on the subject, the petitioner cannot be branded or dubbed as an absconder in the absence of such proceedings.

4. For what has been discussed above this petition is allowed and the petitioner is B admitted to bail subject to furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.